Eight myths about the Constitution

Only 5 men signed both the Constitution and the Declaration of Independence. One of the was Benjamin Franklin (National Archives Identifier 532849)
Only six men signed both the Constitution and the Declaration of Independence. One of them was Benjamin Franklin. (National Archives Identifier 532849)

Constitution Day is September 17. We’ve got events, programs, and activities at National Archives locations across the United States.

Pundits, candidates, and party activists like to cite the Constitution of the United States as the moral and legal backing for whatever they’re proposing. Or they say that something an opponent proposes is unconstitutional.

But the Constitution is silent on a lot of things you probably thought it said. Here are eight examples.

The President can veto a proposed amendment to the Constitution.

No. He has nothing to do with the amendments. Congress can propose an amendment with a two-thirds vote of both houses, or a Constitutional Convention can be called by a vote of two-thirds of the state legislatures. However, once the amendment is proposed either by Congress or a convention, it must be ratified by three-fourths of the state legislatures.

Only one amendment, the 21st Amendment, which repealed Prohibition (the 18th Amendment), was ratified by conventions in the states.

The “Founding Fathers” who wrote the Declaration of Independence in 1776 are the same men who wrote the Constitution in 1787.

Only six individuals signed both of these two founding documents. They were George Clymer, Benjamin Franklin, Robert Morris, George Read, Roger Sherman, and James Wilson.* Some of the famous signers of the Declaration were elsewhere when the Constitution was being written. Thomas Jefferson was in France as our American minister, and John Adams was American Minister to Great Britain.

The Constitution established the system of Federal courts.

No. The Constitution established “one supreme Court” and left it to Congress to establish lower courts.

The Constitution gave the Supreme Court the power to declare laws unconstitutional.

No. The Constitution makes no mention of judicial review, which is common in our legal system now. Judicial review goes back to English common law and was affirmed during the 34-year tenure of Chief Justice John Marshall in the landmark case Marbury v. Madison in 1803. Today, federal courts at all levels can declare laws unconstitutional, although the Supreme Court has the final word.

The Constitution sets the number of seats in the House of Representatives at 435.

No. The Constitution gives this power to the Congress, which has increased the number of House members as the nation’s population has increased. The House of 435 members was set in 1911. It has temporarily exceeded that number for a few years when new states were admitted to the Union, but reverted back to 435 after the next reapportionment. The original proposed Bill of Rights included an amendment that would have set a maximum of one representative for every 50,000 persons. Had it been approved, we would have a very large number of House members today. The Constitution did say that each state would have two senators in the Senate, regardless of the state’s population.

The House must choose one of its own members as Speaker, and the Senate must choose one of its own as President pro-tempore.

No. The Constitution says only that the “House shall chuse their speaker.” The Speaker, third in line to the presidency, has always been a member of the House. The Constitution also says, “The Senate shall chuse. . . .a President pro tempore. . . .” The President pro tempore has always been a senior senator.

The Constitution says “all men are created equal.”

No. The Declaration of Independence says that. The Constitution skirts the issue of slavery, counting each slave as three-fifths of a person in determining representation in Congress. While this definition offends us today, it was an attempt to limit the power of states with large numbers of enslaved people. Otherwise, the enslaved people, who of course could not vote, would have been used to justify larger numbers of representatives for slave states and give them more power in Congress.

The Constitution created the United States as a democracy.

No. Someone asked Benjamin Franklin whether the delegates to the Constitutional Convention inside Independence Hall in Philadelphia had created a monarchy or a republic. “A republic, if you can keep it,” Franklin replied. The difference: In a democracy, the majority rules, but a republic has a government by the people with checks and balances and a constitution for all to adhere to. Article 4, section 4, states: “The United States shall guarantee to every State in this Union a Republican Form of Government.”


* Text corrected Sept. 25, 2015 to “six’

4 thoughts on “Eight myths about the Constitution

  1. The final “myth” on the list is questionable.
    The question to which Franklin responded was “monarchy or republic.” Obviously the answer was not going to be “monarchy.”
    For centuries, the word “republic” has been used in opposition to monarchy (or other autocratic forms of government). Clearly it was used in that sense in this case. Furthermore, there is no contradiction between describing the United States as a democracy or as a republic.
    Republic: “a state in which supreme power is held by the people and their elected representatives, and which has an elected or nominated president rather than a monarch.”
    Democracy: “a system of government by the whole population or all the eligible members of a state, typically through elected representatives.”
    If Franklin has been given the choice between “monarchy or democracy” his answer would have been “democracy” since “monarchy” was not an acceptable option.
    It’s very weak scholarship, and questionable interpretation, to base the “myth” on the choice of words by an anonymous questioner (who may well be apocryphal).

    1. History doesn’t agree. The entire structure of the government was consciously non-democratic. Only a minority of citizens were even “qualified” to vote, representatives and senators were elected to represent the interests of citizens. The president is decided by the electoral college, not direct voting by citizens (see 2016). I don’t think Franklin would ever have agreed to calling the government a democracy. Given the choice between monarchy and democracy, I am sure he would have said “Neither”. It is correct to call it a republic.

  2. Yes and now we have a government that keeps calling us a democracy because they have created a majority rule with our electoral voting system which is not representative of a republic which we should be. Worse uneducated public and it is no longer taught in schools and in essence the republic part is being wiped out by lack of knowledge

  3. Our government is no for the people which in and of itself is not according to our foundation. The pledge of allegiance in schools was removed because they did not want our young stating or learning we are one nation UNDER GOD and for this republic for which we stand is we the people they do not want we thenoeople the want the slaves

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